United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-1006

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Sylvanus Biko Freeman, *

*

Petitioner, *

* On Petition for Review of an

v. * Order of the Board of

* Immigration Appeals.

Eric H. Holder, Jr., United States *

Attorney General, *

*

Respondent. *

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Submitted: October 21, 2009

Filed: March 8, 2010

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Before COLLOTON, BEAM, and BENTON, Circuit Judges.

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BEAM, Circuit Judge.

Sylvanus Biko Freeman, a citizen of Liberia, petitions for review of the Board

of Immigration Appeals' ("BIA") denial of his motion to reopen his removal

proceedings. We deny the petition in part and dismiss the remainder for lack of

subject matter jurisdiction.

I. BACKGROUND

In 1997, Freeman entered the United States as a refugee. In 2006, he pled

guilty in Minnesota to Felony Financial Transaction Card Fraud, for which he
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received a suspended sentence of one year and one day. Less than a year later,

Freeman violated his parole, and his suspended sentence was, accordingly, revoked.

On November 14, 2007, the Department of Homeland Security ("DHS")

initiated removal proceedings against Freeman and served him with a Notice to

Appear. The Notice to Appear charged Freeman as removable and inadmissible for

being (1) an alien convicted of committing an act which constitutes a crime involving

moral turpitude, in violation of Immigration and Nationality Act ("INA") section

212(a)(2)(A)(i)(I); and (2) an alien who at the time of entry was not in possession of

a valid entry document, in violation of INA section 212(a)(7)(A)(i)(I). As a result of

these charges, DHS elected to detain Freeman.

While detained, Freeman had three master calendar hearings. Freeman received

notices prior to each of these hearings. All of these notices, as well as the original

Notice to Appear, contained warnings indicating that it was Freeman's responsibility

to keep his address current by filing appropriate change of address paperwork and that

his failure to appear at any hearing could result in immediate removal. Freeman

remained in custody until January 14, 2008, at which point DHS released him on his

own recognizance. This required him to participate in the Intensive Supervision

Appearance Program ("ISAP") using electronic ankle bracelet monitoring. The record

indicates that upon release from DHS custody, Freeman stated that his address would

be 14382 Wintergreen Street, Andover, Minnesota. Accordingly, DHS sent a Form

I-830 notice of alien's address to the immigration court, indicating that Freeman would

be residing at that location.

On January 22, 2008, DHS sent notice to 14382 Wintergreen Street informing

Freeman of his next hearing in May. Freeman failed to appear at that hearing.

Accordingly, the Immigration Judge ("IJ") ordered him removed in absentia.
1

The waiver actually states that it waives INA section 212(a)(2)(A)(i)(II).

Because we believe that this reference was a mere clerical error, we correct it for

purposes of this discussion. Cf. Reyes-Morales v. Gonzales, 435 F.3d 937, 943 (8th

Cir. 2006) (noting that clerical errors are purely ministerial and thus harmless).

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On January 9, 2008, prior to being ordered removed and while Freeman was

still in custody, Freeman received a waiver of inadmissibility under INA section

209(c) (codified at 8 U.S.C. § 1159(c)), which waived the application of section

212(a)(2)(A)(i)(I)1

 as it relates to the offense of Felony Financial Transaction Fraud.

Freeman did not present this waiver to the IJ prior to being ordered removed.

On June 13, 2008, Freeman filed a pro se motion to reopen his proceedings

alleging that he never received notice of the May hearing. Specifically, Freeman

contended that he was living at 3639 Girard Avenue in Minneapolis, Minnesota, not

14382 Wintergreen Street in Andover, Minnesota. The IJ denied the motion to

reopen. On appeal, the BIA remanded the matter for an evidentiary hearing to

determine whether Freeman had received proper notice of the hearing (i.e. whether he

had filed a change of address form).

On remand, the IJ held two evidentiary hearings to develop the record. At the

first of those hearings, Freeman told the IJ that ISAP did not give him an ankle

bracelet. However, the record indicated that Freeman was in fact placed on the ISAP

electronic monitoring program, wore an ankle bracelet, and was required to check in

twice a week. And, the record indicated that Freeman violated the electronic

monitoring and failed to show up in person at his appointments.

At the second hearing, Freeman moved to subpoena Anna Neal, a supervisory

officer at ISAP, so that he might cross-examine her regarding the ISAP program and

procedures. The IJ denied that subpoena, found Freeman not credible, and held that

Freeman had not filed a change of address form. The IJ's adverse credibility holding

was based on four specific findings: (1) Freeman was not forthcoming about his
2

The Supreme Court recently held that federal "courts retain jurisdiction to

review" the BIA's decision to grant or deny a motion to reopen. Kucana v. Holder,

130 S. Ct. 827, 838 (2010). However, the Court expressly did "not reach the question

whether review of a reopening denial would be precluded if the court would lack

jurisdiction over the alien's underlying claim for relief." Id. at 839 n.17. Thus,

Kucana does not alter our Hanan precedent.

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participation in the ISAP ankle bracelet monitoring program; (2) Freeman missed

several of his ISAP face-to-face meetings and violated the ankle bracelet monitoring

program; (3) it was implausible to believe Freeman's assertion that he provided two

different addresses on the same day; and (4) Freeman's supporting documentation was

vague and unsubstantiated. Accordingly, the IJ denied the motion to reopen and the

BIA affirmed. Freeman petitions us for review of this denial.

II. DISCUSSION

A. Jurisdiction

As a preliminary matter, we must determine whether we have jurisdiction to

review the BIA's denial of Freeman's motion to reopen. "If an alien is a criminal alien

under 8 U.S.C. § 1252(a)(2)(C), our jurisdiction to review his denial of a motion to

reopen a final order of removal is limited to constitutional claims and questions of

law." Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir. 2008) (citing 8 U.S.C. §

1252(a)(2)(C)-(D)).2

An alien is a "criminal alien" if he "is removable by reason of having committed

a criminal offense covered in[, among other sections,] section 1182(a)(2)." 8 U.S.C.

§ 1252(a)(2)(C). As the Eleventh Circuit has noted, determining whether an alien is

a "criminal alien" involves a three-step inquiry in which we ask whether the individual

is "(1) an alien (2) who is removable (3) because he committed a criminal offense

[covered in section 1182(a)(2)]." Balogun v. United States Att'y Gen., 304 F.3d 1303,
3

In his brief Freeman argues that he received a 212(c) waiver of inadmissibility.

However, this contention is erroneous for two reasons. First, there is no 212(c) waiver

in the record. Second, INA section 212(c) was repealed in 1996. See INS v. St. Cyr,

533 U.S. 289, 297 (2001). Since Freeman pled guilty after 1996, he could not apply

for a 212(c) waiver. Cf. id. at 326 (holding that "212(c) relief remains available for

aliens" who pled guilty prior to 1996). Therefore, we do not address the effect of a

212(c) waiver on our jurisdiction.

4

Of course, if he had been granted adjustment of status based upon receipt of

the 209(c) waiver, that may have altered whether he was removable. However, since

Freeman also failed to appear at his adjustment of status hearing, his application for

adjustment of status was denied.

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1310 (11th Cir. 2002). Freeman admits that he is an alien and that he committed "a

crime involving moral turpitude" pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I).

However, he contends that he is not removable for that conviction because he received

a 212(c) waiver of inadmissibility.3

 We assume Freeman intended to direct our

attention to the 209(c) waiver, and we still find him removable.

A 209(c) waiver (codified at 8 U.S.C. § 1159(c)) does not make an alien

immune from removal. Instead, it waives a ground of inadmissibility for the purpose

of seeking adjustment of status. 8 U.S.C. § 1159(c) (providing that certain provisions

of the INA "shall not be applicable to any alien seeking adjustment of status under this

section, and the Secretary of Homeland Security or the Attorney General may waive

[other provisions] with respect to such an alien" (emphasis added)). Since a 209(c)

waiver only deals with waiving grounds for inadmissibility for the purpose of seeking

adjustment of status, the waiver Freeman placed in the record has no bearing on

whether he was removable for his conviction.4

Although Freeman did place the 209(c) waiver into the record, he has not, until

now, asserted that the waiver makes him immune from removal for committing a

crime of moral turpitude. It was Freeman's burden to prove that he was eligible for

relief from removal. 8 U.S.C. § 1229a(c)(4)(A). He failed to meet this burden. Thus,
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he is a criminal alien under 8 U.S.C. § 1252(a)(2)(C), and our review of his motion

to reopen is limited solely to constitutional claims and questions of law. 

B. Legal Claims

To the extent Freeman raises any legal or constitutional claims, we review those

issues de novo. Hanan, 519 F.3d at 763. But, given our limited jurisdiction, "[a]

petitioner cannot evade [our] jurisdictional barrier by couching a factual argument in

legal or constitutional terms; he must present a colorable legal or constitutional

claim." Dukuly v. Filip, 553 F.3d 1147, 1149 (8th Cir. 2009).

Freeman asserts that he was denied due process during both the removal and

reopening proceedings. The Fifth Amendment's Due Process Clause entitles Freeman

to a fair hearing. Kipkemboi v. Holder, 587 F.3d 885, 890 (8th Cir. 2009); Tun v.

Gonzales, 485 F.3d 1014, 1025 (8th Cir. 2007). To show that the proceedings were

unfair in violation of due process, Freeman "must demonstrate both a fundamental

procedural error and resulting prejudice." Kipkemboi, 587 F.3d at 890; see also

Dukuly, 553 F.3d at 1149 ("To establish a violation of due process rights, a petitioner

must show fundamental unfairness or procedural irregularities that prejudiced his

case."). "In this context, prejudice means a showing that the outcome of the

proceeding may well have been different had there not been any procedural

irregularities." Tun, 485 F.3d at 1026.

Freeman asserts three instances in which he believes he was denied due process.

First, he asserts that the immigration court violated his due process by not specifically

warning him of the consequences of a failure to appear. In support of his assertion,

Freeman directs our attention to 8 U.S.C. § 1229a(b)(5) & (7), which provides that the

immigration court give an alien written and oral notice of the consequences of a

failure to appear at a removal hearing. Contrary to Freeman's assertions, the

immigration court complied with the strictures of 8 U.S.C. § 1229a(b)(5) & (7).
5

Notably, DHS sent two Form I-830s to the immigration court. Both identified

that Freeman reported his address to be 14382 Wintergreen Street.

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Specifically, Freeman received written and oral notice in the form of the November

14, 2007, Notice to Appear. The Notice to Appear provided written warning to

Freeman both of the consequences of a failure to appear and his duty to update his

address during removal proceedings. And, at the time he received the Notice to

Appear, Freeman acknowledged that the process server read the warnings aloud.

Further, Freeman received additional written notice of the consequences in the form

of three separate notices of hearings, all of which were personally served on Freeman

while he was in DHS custody. Thus, Freeman was provided with ample notice of the

consequences of a failure to appear.

Second, Freeman contends that he did not receive proper notice of the May

hearing. Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii), if Freeman did not receive proper

notice of his May hearing, then the IJ's in absentia order was in error. However, if the

alien moves and fails to provide the immigration court with his new address, then the

alien is not entitled to written notice. 8 U.S.C. § 1229a(b)(5)(B). Here, the record

shows that DHS mailed Freeman notice of his May hearing to 14382 Wintergreen

Street. And, upon out-processing Freeman, DHS properly filed a Form I-830

notifying the immigration court that Freeman provided DHS with 14382 Wintergreen

Street as his address.5

 To the extent that Freeman now argues that he was living at

3639 Girard Avenue, it was his obligation to file a change of address form. 8 U.S.C.

§ 1229a(b)(5)(B). As noted above, Freeman was amply warned of this duty. Here,

the IJ made a factual determination that Freeman did not file a change of address. We

have no jurisdiction to review that factual determination. Pursuant to that

determination, Freeman was afforded proper notice of the May hearing.

Third, Freeman contends that the IJ denied him due process by excluding the

testimony of Anna Neal. "[D]ue process concerns dictate that immigration judges do
6

We recognize that Freeman raises two additional arguments in his petition.

First, he challenges the IJ's credibility determination. Because adverse credibility

determinations are a finding of fact, Sow v. Mukasey, 546 F.3d 953, 956 (8th Cir.

2008), we lack jurisdiction to review the IJ's credibility finding. Second, he asks that

we remand this case for adjudication of his N-600 Application for Certificate of

Citizenship. Since Freeman did not file the application until after he filed his motion

to reopen, and since DHS has not yet made a determination on that application, the

unadjudicated application is not grounds for us to remand this record. Cf. Tebyasa v.

Holder, 593 F.3d 707, 709 (8th Cir. 2010) (noting that in the context of an I-130

application that "[t]he BIA will grant a motion to reopen [on the grounds of an I-130

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not enjoy complete discretion in the admission and exclusion of evidence." Tun, 485

F.3d at 1026. "To comport with the requirements of due process . . . the immigration

court cannot unfairly prevent a petitioner from presenting probative evidence and

making a record." Id. Freeman asserts that Ms. Neal's testimony was necessary to

develop the procedures used when processing someone out of DHS custody into the

ISAP ankle bracelet program and whether the ankle bracelet monitoring equipment

could be connected to a cell phone. 

At the time Freeman sought to admit Ms. Neal's testimony, the only issue was

whether Freeman had filed a change of address. The record establishes that Ms. Neal

was not the individual who actually out-processed Freeman. Thus, her testimony as

to what procedures were used was not probative. And, to the extent that crossexamining Ms. Neal on the salient points might have been probative, Freeman still

must show that "the outcome of the proceeding may well have been different had" the

IJ not excluded Ms. Neal's testimony. Id. Since the IJ rested her negative credibility

finding in part on the ISAP records' indication that Freeman had violated ISAP's

monitoring program, Freeman contends Ms. Neal's testimony might buffer or rebut

this finding. However, even if Ms. Neal's testimony would rebut this finding, the IJ

also found Freeman incredible on three other grounds. Thus, Ms. Neal's testimony

would not have changed the outcome of Freeman's case, and he was not denied due

process.6
petition] only if an I-130 has been approved").

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III. CONCLUSION

Accordingly, we deny Freeman's petition for review regarding his constitutional

and legal arguments that the IJ and the BIA denied him due process. We dismiss the

remainder of his petition for lack of subject matter jurisdiction.

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